2. We
DENY and DISMISS Mr. Betha's Petition
for writ of habeas corpus (ECF Doc No. 1) with
prejudice and without an evidentiary hearing;

3.
There is no probable cause to issue a certificate of
appealability as Mr. Betha has not demonstrated reasonable
jurists would debate the correctness of the procedural
aspects of this ruling nor has he made a substantial showing
of the denial of a constitutional right; and, 4. The Clerk of
Court shall close this case.

---------

Notes:

[1] Darrell R. Betha raises five
objections to Judge Rueter's Report and Recommendation.
His first two claims are not exhausted in state court and are
procedurally defaulted; his third claim cannot afford relief;
and, his fourth and fifth claims cannot proceed in federal
court. Following our independent review, we dismiss his
petition and deny his request for an evidentiary
hearing.

On December 1, 2005, a state court jury found Mr.
Betha guilty of third-degree murder and possession of an
instrument of crime. The trial judge sentenced Mr. Betha to
twenty to forty years incarceration. After appealing nunc
pro tune, the Pennsylvania Superior Court affirmed his
sentence on May 20, 2010, and the Pennsylvania Supreme Court
denied his request for direct appeal on March 1, 2011. Three
years later, the Post-Conviction Relief Act court appointed
counsel to pursue collateral relief. The PCRA court dismissed
his petition on June 9, 2015. On August 17, 2016, the
Pennsylvania Superior Court dismissed his appeal of the
denial of PCRA relief for failing to file a brief. A second
petition for collateral relief, dismissed by the PCRA court
once more, is now pending in the Pennsylvania Superior
Court.

Mr. Betha petitioned for a writ of habeas
corpus under 28 U.S.C. §2254 arguing: trial counsel
was ineffective for failing to investigate the discovery
material and/or interview potential self-defense witnesses;
trial counsel was ineffective for failing to object to the
prosecutor's closing argument; PCRA counsel was
ineffective for failing to raise a layered claim of trial and
appellate counsel's ineffectiveness; the PCRA court erred
in dismissing petitioner's PCRA petition without an
evidentiary hearing; and, the trial court abused its
discretion in sentencing petitioner outside the standard
guidelines' recommended range. The Philadelphia District
Attorney responded each claim is procedurally defaulted and
Mr. Betha's third, fourth, and fifth claims are
non-cognizable on habeas review.

A habeas petitioner must first exhaust all of
his remedies in state court. 28 U.S.C. § 2254(b)(1)(A).
In Pennsylvania, habeas petitioners are not required
to appeal to the Pennsylvania Supreme Court to satisfy the
exhaustion requirement. Lambert v. Blackwell, 387
F.3d 210 (3d Cir. 2004). A petitioner generally cannot
succeed on a habeas claim if they fail the
procedural requirements of exhausting their state claim.
Martinez v. Ryan,556 U.S. 1 (2012). But we will
allow the habeas claim if the procedural rule is not
independent and adequate, the petitioner can show cause for
failure to comply, or a fundamental miscarriage of justice
would occur, . Boyd v. Waymart,579 F.3d 330, 368
(3d Cir. 2009).

Mr. Betha failed to file a brief while the superior
court reviewed his appeal from the PCRA court's first
denial of his claim for collateral relief. Under
Pennsylvania's rules of appellate procedure, the superior
court dismissed his appeal. Pa. R. App. P. 2101 ("Brief
and reproduced records shall conform in all material respects
with the requirements of these rules as nearly as the
circumstances of the particular case will admit, otherwise
they may be suppressed, and, if the defects are in the brief
or reproduced record of the appellant and are substantial,
the appeal or other matter may be quashed or
dismissed"). We recognize Rule 2101 as independent and
adequate. See London v. Glunt, No. 12-4359, 2013 WL
3199638 at *6 (E.D.Pa June 25, 2013); Dotson v.
Chamberlain, No. 8-149, 2008 WL 47627666 at *4 (E.D.Pa
Oct. 30, 2008). Mr. Betha has also not shown cause for
failing to comply with the procedural rule nor has he shown a
fundamental miscarriage of justice. Mr. Betha objects,
arguing policies of the Department of Corrections prevented
him from bringing documents during a prison transfer which he
needed to write his brief. However, the Department of
Corrections allowed Mr. Betha to bring files related to his
civil action with him; in addition, he had access to a law
library while transferred. Mr. Betha's PCRA claim and
appeal, dismissed by the Pennsylvania Superior Court for
failing to file a brief, procedurally defaults his first two
claims challenging his trial counsel's
effectiveness.

Mr. Betha's third, fourth, and fifth claims cannot
satisfy a habeas review. There are no grounds for
relief for incompetency of counsel during post-conviction
proceedings, invalidating his third claim. 28 U.S.C. §
2254(i). The denial of an evidentiary hearing is a state law
claim, and cannot be brought in a habeas action,
barring his fourth claim. See Lambert v. Blackwell,387 F.3d 210, 247 (3d Cir. 2004); Brookins v.
Wenerowicz, 2018 WL 3008502 (E.D. Pa. June 15, 2018).
Similarly, Mr. Betha's fifth claim challenging the
deviation for state sentencing guidelines is also a state law
claim, which is not cognizable in federal court. Pringle
v. Court of Common Pleas,744 F.2d 297 (3d Cir.
1984).

Mr. Betha also requested an evidentiary hearing. The
decision to grant an evidentiary hearing is "left to the
sound discretion of district courts." Goldblum v.
Klem,510 F.3d 204, 221 (3d Cir. 2007) (citation
omitted). Federal law prohibits evidentiary hearings on
claims with an undeveloped factual basis in state court. 28
U.S.C. &sect; 2254(e)(2). A petitioner must make "a
prima facie showing that would enable him to prevail on the
merits of the asserted claim" for an evidentiary
hearing. Morris v. Beard,633 F.3d 185, 196 (3d Cir.
2011). Mr. Betha did not ...

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